Make sure you do not break discrimination law
When hiring, it’s usually against the law to discriminate against a job applicant based on any of the following, known as ‘protected characteristics’:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
In the workplace, indirect discrimination means there are rules or arrangements that apply to everyone, but which in practice could be less fair to someone with a protected characteristic.
For example, your business is recruiting for a head of sales. You only advertise the job internally. The potential applicants in the business are all men. You could therefore be discriminating indirectly against women.
Another example could be a job advert that states applicants must have spent a specific amount of time doing something (for example, 10 years working in retail). By doing this, you could be discriminating indirectly against younger applicants. The advert should instead say that the applicant needs to meet a specific level of competence or knowledge. You could also include the main tasks and skills involved in the job.
Circumstances when you can ask questions about protected characteristics
In some cases you can ask questions about protected characteristics. If you do this you must follow the law.
Common examples are asking a job applicant:
- if they need you to make 'reasonable adjustments', for example making sure that a disabled person coming for an interview can access your office
- to complete an equality and diversity monitoring form, to help check your business follows the law
If you ask applicants to complete equality monitoring forms:
- anyone involved in interviewing or deciding to hire them must not have access to the information
- you should not ask applicants to enter their name or any other information that identifies who they are
Other questions about protected characteristics could be against the law. As this can be a complex area, call the Acas helpline or get legal advice if you’re not sure of the types of questions you can ask about protected characteristics.
When a requirement is crucial or helps a disadvantaged group
You can ask that job applicants have a certain protected characteristic, if:
- it’s crucial for the job (an ‘occupational requirement’)
- it helps a disadvantaged or under-represented group
It’s crucial for the job
You must be able to prove that the protected characteristic is crucial for someone to do the job effectively.
- a care worker agency could ask for female applicants, if the person being cared for is female and she has said she would be uncomfortable in receiving this type of care from a man
- the Catholic church can ask for a priest who is a Catholic
If an occupational requirement is justified and you advertise the job again later, you must check that it still applies.
Because an occupational requirement can be hard to prove, you should get legal advice beforehand.
It helps a disadvantaged or under-represented group
You can ask for a protected characteristic or use it when deciding to hire someone. But you must be able to prove you’re doing this to help a disadvantaged or under-represented group in your business. This is sometimes known as 'positive action'.
You must also be able to prove that the person is capable of doing the job.
For example: your business has 10 salespeople who are all men, so you know women are under-represented. You need another salesperson. You interview several applicants for the job. Once the interviews are over, you find that 2 of the applicants are equally capable. One is a man, the other is a woman. In the end you decide to hire the woman, because she is capable of doing the job and women are under-represented in your existing workforce.
According to the law, you must always see if there’s a less discriminatory way to make your workforce more diverse. Even if you believe a certain protected characteristic is essential, you could be challenged if someone feels you’ve discriminated unfairly. Call the Acas helpline or get legal advice to check first.
Trade union membership
It's against the law to treat someone unfavourably based on whether they are, or are not, a trade union member.